Roberts court will face big choices early

WASHINGTON
— The lineup of cases to be argued at the US Supreme Court this fall offers the first good opportunity to assess the jurisprudence of its rookie chief justice, John Roberts.

In its new term, which begins Monday, the high court is set to examine an assisted- suicide law, the religious use of hallucinogenic tea, an abortion statue concerning parental notification, and a ban on federal money to universities that restrict military recruiting on campus. The balance of power between states and the federal government is on the docket again, as are campaign-finance laws, aspects of capital punishment, and police procedures.

How Mr. Roberts handles these and other cases will provide court watchers with solid evidence of his behavior as a justice. And it could offer important clues about how he views his leadership role on the bench.

"It will be very interesting to hear his questions and the kinds of things that concern him," says Tom Goldstein, a Washington lawyer who specializes in Supreme Court cases and closely studies the workings of the court. "Is he more concerned about the facts [in a particular case], or the broader legal principles?"

But part of that assessment may have to await yet another significant development - the replacement of retiring Justice Sandra Day O'Connor. The prospect of a change of a justice in mid-term injects an element of uncertainty into the court's work, legal analysts say.

Announcement of a White House nomination could come as early as Monday. But even under expedited confirmation procedures, a new justice is not likely to arrive at the court before December, analysts say.

The O'Connor factor

That means there is a potential that any cases in which Justice O'Connor provides the decisive fifth vote will be reargued at a later date after her replacement is on the court.

Mr. Goldstein says three to five of the 31 cases set to be heard during the next three months could end up being reargued.

"If all goes smoothly, O'Connor will be leaving the court sometime in December so [for] every case that isn't decided by that point, her vote doesn't count. And if she's the deciding vote then the case can't be decided and it will have to be reargued," Goldstein says.

O'Connor has agreed to continue serving on the court pending confirmation of her replacement. But as a lame duck justice, her presence may make it difficult to resolve the toughest cases until after her departure. The situation is further clouded by the possibility of a Senate filibuster that could stall a Bush nominee to replace O'Connor.

"We are in a little bit of a litigation pickle," says Georgetown University Law School professor Viet Dinh. While it is unlikely that litigants will attempt to manipulate the system by taking advantage of O'Connor's imminent departure, Professor Dinh says, "It does raise a question of strategic gaming by the justices."

Dinh, a former law clerk to O'Connor, made his remarks during a recent Supreme Court preview conducted at Georgetown University Law School. "If there is, for example, a 5-4 decision with Justice O'Connor in the majority, then of course the dissenters would have a fairly strong and reasonable incentive to delay the announcement of that decision by not circulating their dissent," he says.

The case most likely to result in a 4-4 deadlock with O'Connor breaking the tie involves a challenge to a 2003 New Hampshire law that requires teens seeking an abortion to notify a parent.

The issue in Ayotte v. Planned Parenthood of Northern New England is whether the same tough constitutional standards established in earlier abortion cases should be applied to invalidate the New Hampshire law.

A federal judge and a federal appeals court panel struck down the notification law because it created an "undue burden" on teenagers seeking abortions. They also said it did not provide an adequate exception for cases in which a woman's health might be threatened unless she received an abortion.

In appealing, the New Hampshire attorney general argues that the law allows a teen to by-pass the regulations by going directly to a judge. That process provides adequate safeguards to protect a woman's health, the attorney general says.

In essence, New Hampshire is launching a frontal assault on the methods that have made it easier to challenge and strike down abortion regulations than other kinds of laws. Lawyers for the state argue that abortion laws should be examined by the courts under the same constitutional standard as are most other laws.

High stakes for abortion laws

If the high court embraces this argument it would open the door for significant new regulation of abortions at the state level while making it increasingly difficult to challenge such laws.

O'Connor has played the key role in upholding the so-called "undue burden" standard. Her departure from the court is expected to leave the justices divided 4-4 on the issue.

A decision in the Ayotte case could set the stage for an even more significant abortion battle over the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. The Bush administration recently asked the high court to examine a decision by the Eighth US Circuit Court of Appeals striking down the law for lack of an adequate health exception.

Another potential 4-4 split could arise in US v. Georgia. The case involves an Americans With Disabilities Act lawsuit filed by a paraplegic state prison inmate, Tony Goodman. He alleges that because of his disability he was being held in a high-security, lock-down wing of the prison in a cell so small he was unable to turn his wheel chair around.

Those conditions, his suit charges, meant he could not use the toilet and was thus forced to sit for extended periods in his own waste. Georgia countered by claiming that Congress overstepped its authority in attempting to hold the state liable under a federal law that treads upon Georgia's sovereign immunity.

The case is significant because it will help clarify whether the court is prepared to extend its states' rights line of cases or step back from earlier decisions.

The court has also agreed to decide two major campaign-finance cases that could leave the justices sharply divided. One challenges Vermont's mandatory limits on campaign spending as being a violation of a fundamental aspect of the high court's landmark 1976 ruling in Buckley v. Valeo. The other case challenges the ban on corporate issue ads in the McCain-Feingold law. The Supreme Court upheld the law in 2003.